March 23, 2005

Notes on the Nuclear Option -- Part III

by Kagro X

So, anything else wrong with Frist's planned use of the nuclear option?

Sure, plenty.

In the first installment of this series, I mentioned that Frist's most likely maneuver would be to raise a point of order that debate had continued long enough and that a filibuster of a judicial nomination is unconstitutional in that it supposedly prevents the execution of the Senate's duties under Art. II, sec. 2 to express its "advice and consent" on such nominations. I also mentioned that Frist had the option to argue, but probably would not argue, that Art. I, sec. 5 permits each chamber of Congress to determine its own procedural rules, and that therefore a mere majority would be necessary to change Standing Rule XXII, regarding the cloture procedure.

Frist likely won't go that extended route for two reasons, the first of which was discussed yesterday. The second is that getting the result he wants at this point in the Senate's session will likely require the abandonment of almost all of the scholarly and parliamentary underpinnings of the plan, including the very reason proponents are able to tenuously claim that the nuclear option ought in fact to be called the "constitutional option."

Turns out, the Republican hate political science as much as the regular stuff.

Most, if not all of the scholarly writing in support of Frist's gambit drapes his naked power play in the more dignified garb of the "constitutional option," so named because as originally conceived -- decades before Frist's threatened exercise of it -- it is an assertion of the Senate's rulemaking prerogative under Art. I, sec. 5: "Each House may determine the rules of its proceedings." I suppose, though, that in fairness to the scholars who have invoked the name, it should be pointed out that the maneuver, as Frist threatens to attempt it, will abandon any meaningful reference to the Senate's constitutional "right" to determine its own rules, since the ruling Frist will seek from the Chair won't address the constitutionality of changing the Standing Rules. Instead, he'll seek a fiat from the Chair declaring, without debate, that filibusters are unconstitutional -- a finding properly made only by the body itself, not the Chair, and the subject of yesterday's installment.

Gold and Gupta lay out a comprehensive history of the attempts in the Senate to reform the cloture procedure, focusing in particular on parliamentary battles fought from the early 50s through the mid-70s. By supplying some emphasis of my own, below, I'll highlight for you today's flaw in the nuclear option procedure. The authors begin building their case for the so-called "Constitutional option" by citing a 1979 floor speech by Sen. Robert Byrd (D-WV). "Faced with a potential filibuster on his rules-change proposal," which included cloture reform, Gold and Gupta quote Byrd as saying:

The Constitution in article I, section 5, says that each House shall determine the rules of its proceedings. Now we are at the beginning of Congress. This Congress is not obliged to be bound by the dead hand of the past.

[...]

[I]t is my belief--which has been supported by rulings of Vice Presidents of both parties and by votes of the Senate--in essence upholding the power and right of a majority of the Senate to change the rules of the Senate at the beginning of a new Congress.

Gold and Gupta take back to the origins of the cloture procedure, citing Senator Thomas J. Walsh (D-MT), whom they credit with advocating the "constitutional option" in 1917:

Like Byrd, Walsh reasoned that a newly commenced Senate may disregard the rules established by a prior Senate, including the rules governing filibusters, and adopt new rules in their stead.

And later:

A past Senate, [Walsh] reasoned, could not take this right away from succeeding Senates by passing debate rules that, in practice, prevented a new Senate from choosing its own rules by majority vote.

What was Walsh's reasoning?

Walsh noted that at the start of each session the House has no rules until it, while operating under general parliamentary procedures, adopts new rules or re-adopts the prior rules. Similarly, he concluded, the Senate has no rules until it adopts new rules or re-adopts the prior rules, whether explicitly by a vote or implicitly by operating under them and thus acquiescing to them.

And why else might Walsh consider the convening of a new Congress significant?

It is because the new members, coming fresh from the people, ought to have the right to be heard and be accorded the opportunity to vote in the light of information gleaned at every stage of the passage of a bill or resolution.

Leaving aside for a moment the theory that would hold that a Senator's ability to represent the people who elected him depreciates over time, I will note only that Walsh once again places a special emphasis on the ability of a new Congress to adopt its rules by majority vote.

MR. DOUGLAS. Is it not true that what the Senate did on the 7th and 8th of March 1917, was to make the change in rule XXII which Senator Walsh urged? Is it not also true that this change would not have been made had not Senator Walsh presented his original resolution for the adoption of Senate rules as a whole, except rule XXII, and for a committee to draft a substitute for that rule, and that this resolution was based upon the theory clearly set forth by Senator Walsh that the Senate had the power to adopt new rules under general parliamentary law at the very beginning of the new Congress?

MR. ANDERSON. I do not believe there is any question in the world about that.

Is there more? Sure there is:

Senators Prescott Bush (R-CT) and [Hubert ]Humphrey [(D-MN)] explained that “whether or not the Senate is a continuing body … [was] immaterial” and certainly “not a controlling factor in this debate.” The relevant question, they explained, was whether “the Senate of each new Congress [was] free to adopt rules for its proceedings under the Constitution,” a question Article I, Section 5 of the U.S. Constitution answered in the affirmative.

But that has to be the last such point, no? No. In fact, the next mention comes from what Gold and Gupta refer to as "the most influential statement in support of the constitutional option," the same Nixon pronouncement I cited in the first installment, which the authors treat thus:

Nixon responded with an advisory opinion supporting the constitutional option. Nixon emphasized that his statement was not a formal ruling and thus was not binding precedent for the Senate. Nixon began by noting that because the “Presiding Officer of the Senate ha[d] never ruled directly” as to whether the “rules of the Senate continue from one Congress to another,” the issue was open. In such a case, he argued, it was proper to “first turn to the Constitution for guidance.” Nixon concluded that the Constitution’s provision that “‘each House may determine the rules of its proceedings’” grants “the majority of the new existing membershipof the Senate … the power to determine the rules under which the Senate will proceed.”

[...]

Nixon explained that a new Senate had three options available “[a]t the beginning of a session”: (i) proceed under the rules of the “previous Congress and thereby indicate [its] acquiescence that those rules continue in effect,” which was the practice the Senate had followed for nearly 170 years; (ii) vote down a motion to adopt new rules and thereby “indicate approval of the previous rules”; or (iii) “vote affirmatively to proceed with the adoption of new rules.”

Still don't get it? Fine. When, in 1959, Senate Majority Leader Lyndon Johnson (D-TX) attempted to block yet another cloture reform gambit at the opening of a new Congress by exercising his privileged status to be recognized first among those seeking the floor, and then offering his own compromise substitute motion, reformers sought to secure their right to be heard during this critical period:

They had concluded "that the only safe method of establishing clearly the right of the Senate to adopt rules [wa]s to do so at the beginning of the session.

On January 8th of that year, the authors note, "Vice President Nixon reiterated his opinion that the majority had the constitutional right to establish new Senate rules":

In the opinion of the Chair … the rules of the Senate continue from session to session until the Senate, at the beginning of a session indicates its will to the contrary.

In the opinion of the Chair, also, however, any rule of the Senate adopted in a prior Congress, which has the express or implied effect of restricting the constitutional power of the Senate to make its own rules, is inapplicable when rules are before the Senate for consideration at the beginning of a new Congress.

It has been the opinion of the chair, for example, that subsection 3 of rule XXII [requiring two-thirds vote for cloture] would fall in that category, because it has the practical effect, or might have the practical effect, of denying to a majority of the Senate at the beginning of a new Congress its constitutional power to work its will with regard to the rules by which it desires to be governed

This, Nixon explained, also meant that at the start of a new session, before the Senate had acquiesced to and begun operating under the previous Senate rules, “the majority has the power to cut off debate in order to exercise the right of changing or determining the rules.”

When, in 1963, Vice President Johnson assumed the Chair and ruled on Senator Anderson's motion to invoke the "constitutional option" and enforce a rules change requiring only a 3/5 majority for cloture, the authors note that Chair referred the question to the body as one of constitutional interpretation:

Does a majority of the Senate have the right under the Constitution to terminate debate at the beginning of a session and proceed to an immediate vote on a rule change notwithstanding the provisions of the existing Senate rules?

Even with a presiding officer favorably inclined to cloture reform, as was the case in 1969, the same nagging issue cropped up. On a motion from Sen. Frank Church (D-ID) that a simple majority be permitted to close debate on his 3/5 cloture proposal, Vice President Humphrey pronounced:

[I]f a majority of the Senators present and voting but fewer than two-thirds, vote in favor of the pending motion for cloture, the Chair will announce that a majority having agreed to limit debate on Senate Resolution 11, to amend rule XXII at the opening of a new Congress, debate will proceed under the cloture provisions of that rule.

Here's the same issue, again, this time in 1975. The authors set it up for us by discussing Sen. Byrd's innovation: the "two-track" system, which allows for other Senate business to continue, even in the face of a filibuster, leaving only the challenged business stalled:

[T]he two-track system created potential new difficulties for proponents of the constitutional option. If the Senate debated the constitutional option on one track while operating under the prior Standing Rules on the other track, the Senate might be deemed to have acquiesced to those rules. Should that be the case, resort to the constitutional option might be precluded. Indeed, Vice President Nixon’s landmark 1957 advisory opinion stated that if the Senate began a new Congress by operating under existing rules, it would be deemed to have acquiesced to those rules for the remainder of that Congress and would forego use of the constitutional option for rules changes.

Are you getting the point? Good, because I'm tired of letting Gold and Gupta make it for you. The "constitutionality" of the "constitutional option" appears to rest on the Senate's alleged "right" to adopt new rules for itself under general parliamentary procedure at... the beginning of a new Congress. Which is, of course, not where we are today, and therefore, why the Senate's "constitutional rights" are neither the actual theoretical basis of the nuclear option, nor likely to be addressed in Frist's point of order or what will likely be Cheney's baseless ruling in it.

So how does Frist propose to overcome (read: ignore) this apparent roadblock? Tune in tomorrow for Part IV.

Comments

I'm excited to see Part IV, but I wanted to point out that Frist, in the opening day of the new Congressional session on January 4, 2005, stated: "Right now, we cannot be certain judicial filibusters will cease. So I reserve the right to propose changes to Senate rule XXII [which requires cloture by 41 votes], and do not acquiesce to carrying over all the rules from the last Congress." See Cong. Rec. S14 (http://thomas.loc.gov/cgi-bin/query/D?r109:1:./temp/~r109UXnQCk::).

I don't know how that plays out, but I just wanted to give you the heads up that we may still, for parliamentary purposes, be at the beginning of a new Congress on this issue.

So it occurs to me that there is an expression about changing the rules after the cards are dealt that we ought to be hearing from the Democrat side to make it intuitively clear to the most casual observer that this rule change is an affront to fair play and tradition.

and my question is, why DIDN'T they change the rules at the beginning of this Congress since obviously they are not making this up as they go. did they decide the threat of the nuclear option was more useful this session than executing it, and they will wait until 06 to push the button?

Ah... so McCain or Hagel get to save Frist's butt by being vote # 50... and make their case for the GOP nomination in 2008. That's why the current debacles on Schiavo and Soc Sec are sooo important. Give the moderates a taste of what it feels like to be on the losing side, or see momentum go against them, and they might hold firm on what principle they still have. That is to say, if the public's opinion of congress keeps dropping, it might be sexy again to look like a maverick.

I wonder if this week's inventive misadventure with the Schiavo case will induce one of the conservatively-minded conservatives (Cochran, Sununu, ...) to view Frist's new whizbang conservatively, in consideration of the Law of Unintended Consequences.